Using the Equal Protection Clause to Establish a Right to Choose Proves too Much Part #1

I want to address the abortion-health exception that exists in the current law and exception’s relationship to the equal protection clause. I have posted a variation of the following argument on the comment boards of a couple of different blogs.

“…We do not normally require health exceptions to our laws as a matter of constitutional right. What if the FDA bans one type of drug only used to fight prostate cancer. If my doctor and I believe that I must use that drug in order to fight my prostate cancer, does that mean that the equal protection clause grants me a constitutional right to that drug?”

Now let me start by pointing out what the hypothetical does not address. It does not address the due process clause based health exception. I am centering only on the equal protection justification for abortion that seems to be advocated by Justice Ginsberg [see below].

If we assume that abortion regulations create classifications on the basis of sex; then regulations of prostate cancer are also create classifications on the basis of sex. Laws creating sexual classifications are subject to intermediate scrutiny. For a law to survive intermediate scrutiny that law must be substantially related to the achievement of an important governmental objective. The important government objective at issue with the D&E ban is Congresses’ moral objection to an inhumane way of ending potential life. There could be any number of important government objectives for banning a given drug; lets assume that Congress believes that the prostate drug in question is dangerous and Congress is acting to protect consumers.

Demonstrating a substantial relationship between a medical regulation and an important government interest requires the court to examine the validity of whatever medical evidence Congress used when passing the law. Now here is the rub, what makes the Court more qualified then Congress to rule on the medical issues relating to D&E or the use of a given prostate drug?

The equal protection clause as a tool for protecting the right to choose.

Professor Cass Sunstein of the University of Chicago has posted an interesting comment on Justice Ginsburg’s dissent in the Supreme Court’s latest partial-birth abortion ruling. Found at http://uchicagolaw.typepad.com/faculty/2007/04/equality_and_ab.html. In his comment Professor Sunstein expresses agreement with Justice Ginsburg’s use of the equal protection clause as a device protecting the right to choose. I have several problems with Sunstein and Ginsburg’s argument, and I will post a more developed response. At present I would like to point out a few major issues.

1) Arguing that the equal protection clause validates the right to choose proves too much. The reasoning of an equal protection argument leads to absurd results if taken to its logical conclusion. The only way to prevent overextending the equal protection argument is by making arbitrary choices about when the equal protection clause does and does not apply. Making such arbitrary choices is little more then policy making from the bench.

2) As a matter of original understanding the police power exception to the due process clause also applies to the equal protection clause, so from an originalist perspective it is irreverent where the right to choose comes from. Assuming the right to choose does exist; if fetuses are people then the state can legitimately exercise its police power to infringe upon that right to choose .